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[2012] ZALCJHB 5
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Modikwa Platinum Mine (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (LC) [2012] ZALCJHB 5; [2012] 6 BLLR 578 (LC); (2012) 33 ILJ 1733 (LC) (19 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable/
Not
Reportable
Case No JR 1207/06
In the matter between:
MODIKWA PLATINUM MINE
(PTY) LTD
….............................................................
Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
…...........................................................
First
Respondent
RAYMOND DIBDEN
…...........................................................................
Second
Respondent
BETUEL MOIME
….....................................................................................
Third
Respondent
NATIONAL DOMESTIC,
SECURITY,
AGRICULTURAL AND
ALLIED WORKERS’ UNION
….........................
Fourth
Respondent
Heard: 13 December
2011
Delivered: 19 January
2012
Summary: An unfair
dismissal dispute referred to a con-arb process. Commissioner has
discretion to continue or postpone the arbitration.
Commissioner
refused to accept that the applicant had lodged an objection to the
process and continued with the arbitration. This
was held to be
irregular. Applicant sought to stand matter down to get his
witnesses. This was refused. Commissioner had misdirected
himself.
Award set aside.
JUDGMENT
SEEDAT AJ
[1] This is an
application for the review of an arbitration award issued by the CCMA
on 19 April 2006 on the ground that the Commissioner
had committed a
gross irregularity as envisaged in section 145(2)(a)(ii) of the
Labour Relations Act (LRA).
1
Background
[2] Consequent to his
dismissal, the employee, assisted by his union, referred an unfair
dismissal dispute to the CCMA. It was subsequently
set down as a
con-arb process in terms of section 191(5A) of the LRA.
[3] A con-arb is a
process that was introduced from 1 August 2002 specifically to reduce
the often inordinate delay between conciliation
and arbitration by
permitting a commissioner to proceed immediately to arbitration in
the event that the dispute was not resolved
at conciliation. It is a
compulsory process as regard to probation but requires the
acquiescence of both parties in the case of
a dismissal.
[4] The applicant
objected to the con-arb process as section 191(5A)(c) of the LRA
allows it to do. Though addressed to the provincial
office of the
CCMA in Witbank,
the
notice was faxed through to Polokwane. A copy of the objection was
delivered to the satellite office of the CCMA in Burgersfort
where
the hearing was scheduled to be heard.
[5] On the unsuccessful
conclusion of the conciliation hearing, the commissioner insisted on
proceeding with the arbitration. He
refused to accept the written
notice of objection to the con-arb process asserting that the
objection should have been sent to
the Witbank office.
[6] Letebele, the
applicant’s representative at the hearing then requested a
short adjournment so as to fetch witnesses for
the arbitration from
the applicant’s workplace a little distance away. The
commissioner refused.
[7] Letsebele, not having
prepared for the arbitration and without any witnesses asked to be
excused and the arbitration continued
in his absence.
[8] An award was
subsequently issued under the hand of the commissioner on 11 April
2006 holding the dismissal to be unfair and
reinstating the employee.
Objection to the
con-arb process
[9] Section 191(5A)
permits the CCMA to immediately arbitrate a dispute if the
conciliation has failed. Except for a dismissal of
an employee for
any reason relating to probation when the con-arb process is
compulsory, in other disputes a commissioner can only
arbitrate if no
party has objected to the matter being dealt with as a con-arb.
[10] Landman J in
Ceramic
Industries Ltd v Commission for Conciliation, Mediation &
Arbitration and Another
2
wrote:
‘
In my
opinion the result of the provisions relating to con-arb is that if
one party objects to taking part in con-arb the CCMA is
precluded
from invoking s 191(5A). The CCMA may not rely on rule 17 which
provides for the conducting of the con-arb process.’
[11] In
Inzuzu
IT Consulting (Pty) Ltd v Commission for Conciliation Mediation &
Arbitration and Others
3
De Swardt AJ held that:
‘
The
provisions of CCMA rule 17 make it clear that a commissioner is not
empowered to proceed with the arbitration in circumstances
where one
of the parties fails to appear at con-arb proceedings. When a party
is in default of appearance, the commissioner concerned
may deal with
the conciliation proceedings, but not the arbitration. The
arbitration must be scheduled for a later date.’
[12] The learned judge
based his finding on CCMA rule 17(9) which provides that should an
arbitration not commence on the date specified
by the CCMA, then the
CCMA must schedule the matter for arbitration in the presence of the
parties or by issuing a notice of set
down.
[13] Steenkamp J in
Pioneer
Foods (Pty) Ltd t/a Sasko Milling & Baking (Duens Bakery) v
Commission for Conciliation, Mediation and Arbitration and
Others
4
disagreed with this
approach of De Swardt AJ in
Inzuzu.
The
learned judge analysed CCMA rule 17 and came to the conclusion that
rule 17(9) cannot be reconciled with section 191(5A)(c).
However, for
the learned judge the provisions of section 191(5A)(c) are peremptory
in that ‘the commissioner
must
commence
the
arbitration immediately after certifying that the dispute remains
unresolved if no party has objected to the con-arb.
’
5
(emphasis supplied)
[14] While the learned
judge’s reasoning cannot be faulted, regard must be had of the
general provisions pertaining to arbitrations.
6
Section 136(1) states:
‘
If this Act
requires a dispute to be resolved through arbitration, the Commission
must
appoint
a commissioner to arbitrate the dispute…’(emphasis
added)
Section 138(5) then
provides:
‘
If a party
to the dispute fails to appear in person or to be represented at the
arbitration proceedings and that party-
had referred the dispute to the
Commission, the commissioner may dismiss the matter; or
had not referred the dispute to the
Commission, the commissioner may-
continue with the arbitration
proceedings in the absence of that party; or
adjourn the arbitration proceedings
to a later date.’
[15] There is no reason
why the practice should be different in a con-arb process for a
dismissal dispute where the non-referring
party, usually the
employer, is not present at the arbitration. The commissioner retains
the discretion to either continue with
the arbitration or to postpone
it. This view is consistent with section 138(5) and ties in with
Steenkamp J’s argument in
Premier
Foods
that
even though the party steps into arbitration,
the
commissioner ‘retains a discretion to adjourn or postpone the
proceedings after that’.
7
[16] In the present case,
apart from questioning the service of the objection to the con-arb
process, the commissioner was not satisfied
‘that the objection
had been upheld by the Commission prior to date of set down.’
Neither section 191(5A) of the LRA
nor rule 17 of the CCMA requires
that the objection to a con-arb must be considered. The fact of an
objection itself is sufficient
to stultify the process.
[17] By insisting on
continuing with the arbitration in the face of an objection, the
commissioner had committed a gross irregularity.
Request for a short
adjournment
[18] As a general rule,
courts are not amenable to postponements and have discouraged
commissioners from adopting a casual approach
to such applications.
8
.
Grogan relying on
Keerom
Casa Hotel v Heinrichs and Another
[1999]
1 BLLR 27
LC,
says
that the ‘proper test is whether the other party will suffer
irreparable harm if the matter is postponed’.
9
[19] Here, the employer
did not seek a postponement but only a short adjournment of about an
hour to allow witnesses to be brought
to the hearing. The
commissioner refused saying it was not the ‘the Commissions
[sic] responsibility to mollycoddle parties
to attend processes’
and that there is a consideration of costs in rescheduling cases.
10
[20] The commissioner
clearly misdirected himself. The employer was not applying for a
postponement. The employee would have suffered
neither irreparable
harm nor any prejudice if the matter had stood down for approximately
an hour.
[21] I am of the view
that the refusal of the commissioner to adjourn the matter for a
short while is a decision that a reasonable
decision maker could not
reach. The decision of the commissioner should be reviewed and set
aside and remitted to the CCMA to be
heard afresh by another
commissioner.
[22] The applicant did
not ask for costs.
Order
The award of the second
respondent dated 11 April 2006 under CCMA case reference number
MP143-06 is reviewed and set aside.
The dispute between the
applicant and the third respondent is referred back to the first
respondent for a rehearing before a commissioner
other than the
second respondent.
There is no order as to
costs.
____________________________
SEEDAT AJ
APPEARANCES:
FOR THE APPLICANT:
Advocate M Van As
Instructed by: Cliffe
Dekker Hofmeyer INC
FOR THE RESPONDENT: There
was no appearance
1
66
of 1995.
2
(2005)26
ILJ 89 (LC) at 91F-H.
3
(2010)
31 ILJ 2638 (LC at 2645D-E
4
(2011)
32 ILJ 1988 (LC).
5
Pioneer
Foods (Pty) Ltd t/a Sasko Milling
at
para 35.
6
Rule
17(8) says that the provisions of the LRA and the Rules that are
applicable to conciliation and arbitration apply to con-arb
proceedings.
7
Pioneer
Foods (Pty) Ltd t/a Sasko Milling
at
para 45.
8
Ross
& Son Motor Engineering v CCMA and Others
[1998] 12 BLLR
1168
(LC);
Carephone (Pty) Ltd v Marcus NO
(1998) 19 ILJ 1425
(LAC)
9
John
Grogan
Labour Litigation
and Dispute Resolution
(2010)
Juta: Cape Town 128
10
But
see
Western Cape Southern Suburbs Real Estate (Pty) Ltd t/a Seef
Properties v Commission for Conciliation, Mediation &
Arbitration
(2009) 30 ILJ 2158 (LC) where the court said that
costs should not be an ‘overriding consideration’ (para
26).